Q: My condominium association recently voted on several amendments to the condominium documents. They presented the amendments as one vote, either in favor of all of the changes or against all of the changes. Is this permissible? Shouldn’t we be allowed to vote on each change? (A.A., via e-mail)

A: While there are specific legal requirements about the way amendments must be presented for a vote, there is no requirement that each change be separately voted upon. Whether to present the vote as “all or nothing” or as individual votes on each change is a decision for the board.

Section 718.110(1)(b) of the Florida Condominium Act states a proposal to amend existing provisions of the declaration shall contain the full text of the provision to be amended, new words shall be inserted in the text and underlined, and words to be deleted shall be lined through with hyphens. The statute also provides that if the proposed changes are so extensive that the strike through/underline procedure would hinder rather than assist the understanding of the proposed amendment, the proposed amendment can be presented with the notation that the amendment is a substantial rewording of the declaration and cite to the current provision of the present text. Amendments to the bylaws must follow the same process.

When only a few amendments, each addressing different topics, are up for vote, the “line item” vote is the preferred method. However, when there are extensive amendments, particularly when considering proposed “amended and restated” documents, the line-item voting method is not feasible as the various provisions of the documents are usually tied together and may not match up to either the numbering system or text of the current documents. In this scenario, the “take it or leave it” approach is commonly used. This approach does present the risk that an owner may generally favor the update but vote against the documents because of one isolated issue. Smoking restrictions, pet regulations, and rental procedures are probably the top three on that list. In these cases, some associations do segregate “controversial” items out for a separate line-item vote but have the overall document update voted on as a single question.

Q:  Our HOA management company is telling residents that it is against Florida law to display a military flag on our property. Can you shed some light on this subject? (A.N., via e-mail)

A: The Florida Homeowners’ Association Act provides that a homeowner may display in a respectful manner one portable, removable United States flag or official flag of the State of Florida; and one portable, removable official flag not larger than 4.5-feet by 6-feet, that represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, or rules of the homeowners’ association. Additionally, a homeowner may erect a freestanding flagpole no more than 20-feet high on any portion of the homeowner’s property, provided that the flagpole does not obstruct sightlines at intersections and is not erected within an easement.

The Florida Condominium Act permits a unit owner to display, in a respectful way, one portable, removable United States flag and portable, removable official flags, not larger than 4.5-feet by 6-feet, that represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard. These flags may be flown on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, regardless of any provisions of the condominium documents concerning flags or decorations.

There is also proposed legislation that would amend the flag provisions under both statutes. If adopted the new laws would allow owners to display a flag recognizing the United States Space Force, the newest branch of the Armed Forces of the United States, on designated holidays. There would also be a right to display a flag honoring “first responders.” This proposed legislation would also permit the display of a POW-MIA in condominiums, limit owners to two flags under both statutes, and remove the limitation relating to flying certain flags only on specified days.

If this proposed legislation is adopted, which Tallahassee insiders tell me is likely, it would take effect on July 1, 2022.

Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.

Q: A group of owners in my condominium association are considering recalling certain members of our board of directors. However, a question has arisen as to how long a recalled person is barred from serving on the Board. (B.K., via e-mail)

A:  Section 718.112(2)(j) of the Florida Condominium Act states that the unit owners are entitled to recall any or all members of the board of directors, with or without cause. The Florida Condominium Act and supporting administrative rules adopted by the Division of Condominium, Timeshares, and Mobile Homes lay out the process for recalling directors. A majority of the entire voting interests must vote in favor of the recall in order for it to be effective. For example, if your condominium had one hundred (100) units, you would need fifty-one (51) votes for the recall.

In the event that less than a majority of the board of directors is recalled, the remaining directors, by a majority vote, are entitled to fill the vacancies created by the recall. In the event the owners are recalling a majority or more of the board, the statute and rules require that the owners also nominate replacement directors and an election be held as part of the recall procedure.

In cases where the board fills the vacancy, the vacancy cannot be filled by the person recalled. However, being recalled does not prohibit future service on the board. For example, a director recalled today could put their name into nomination and be put on the ballot for the next annual meeting where director seats are up for election.

Q: Can a condominium association restrict the number of units a person or corporation can own? The concerns are financial, more rental units, and voting control. (C.K., via e-mail)

A: Establishing a limit on the total number of units that any one individual or corporate entity can own, may (or may not) discourage potential commercial investors from seeking to purchase a large number of units in a community. This could offer some protection against skewed voting control, encourage a stable resident population, and, perhaps, protect property values.

However, such a restriction may be considered to be a “restraint on alienation,” which is a legal term for covenants and agreements which restrict the free transferability of property. Courts will allow such a restraint, provided that it is reasonable. In 1983, the Massachusetts Supreme Court found such a restriction to be reasonable in the condominium context. The Court in Franklin v. Spadafora, 388 Mass. 764 (1983) held that the restriction was a reasonable means imparting continuity of residence, inhibiting transiency, and safeguarding the value of investment.

A Florida appellate court also recently addressed this issue in The Tropicana Condominium Ass’n, Inc., v. Tropical Condominium. LLC, No. 3D15-2583 (Fla. Dist. Ct. App. Nov. 16, 2016).  The Court upheld the amendment and applied a “reasonableness” standard to the amendment. Specifically, the Court noted that one owner had acquired six units, and allowed all of them to go into foreclosure. The Court further stated that given the relatively small size of the condominium (having only 48 units), multiple foreclosures caused by a single owner’s financial circumstances, could have a significant, detrimental financial impact on the condominium association.  You will also note that the Court analyzed the application of the provision to the ability of a mortgagee to foreclose, and, thus, presumably the availability of mortgage lending as facture in analyzing the reasonableness of the restraint.

So it would appear that such amendments will be upheld if reasonable if the context of the community, which would presumably include the stated reasons for the restriction. It would be necessary to have a Florida licensed attorney prepare such an amendment and this work should also include review of the association’s particular circumstances.

Q: An issue has arisen in my homeowners’ association concerning what flags are permitted to be flown by homeowners. Certain owners have begun flying historic versions of the American flag stating that they are allowed to do so under the law. Can you give some guidance on this issue? (M.H., via e-mail)

A: Section 720.304(2)(a) of the Florida Homeowners’ Association Act, provides that “[a]ny homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.”

Further, the Act goes on to state that any homeowner is also entitled to erect a freestanding flagpole no more than twenty (20) feet in height on any portion of their property regardless of what the governing documents provide. Such flagpole may not obstruct sightlines at intersections and not be erected in an easement. The homeowner may display the same flags from the flagpole as were permitted to be displayed by the portable flag provision. There is no statutory right to display any other flags, including historic versions of the United States flag.

Accordingly, if an owner wanted to display a historic version of the United States flag, there is no right to do so under the Act, however the Act does not prohibit such display either. Ultimately it would be necessary to review the relevant provisions of the governing documents to determine if there is a regulation on displaying flags. If there is a prohibition on displaying flags, other than those flags permitted by the Act, such a prohibition would be enforceable. However, if the governing documents do not otherwise regulate the display of flags, arguably the homeowner could display any flag they wish, including historic versions of the United States flag.

The Florida Condominium Act, Chapter 718, also provides the right of unit owners to display a portable United States flags or the official flag of the State of Florida, the flags of the Armed Services, or the POW-MIA flag, regardless of the Governing Documents.

Q: My condominium association had the annual meeting in March 2019, and no board meetings since then. What’s the Florida statute in reference to having board meetings? Is the association required to have a certain amount of meetings a year? Can they legally go 4 months without a board meeting? (T.P. via e-mail)

A: A condominium association is not required to have a certain number of meetings of the board of directors per year under Florida law, unless the condominium documents (the declaration of condominium, bylaws, articles of incorporation, or rules) so provide.

Every condominium association must hold an annual meeting of the members and a budget meeting. However, there is no requirement in the statute for regular meetings of the board of directors. Even if there is not a requirement for board meeting frequency in the condominium documents, if 20% of the voting interests in a condominium association petition the board of directors to address an item of business, the board of directors, within sixty (60) days after receipt of the petition, must place the item on the agenda at its next regular board meeting or at a special meeting called for that purpose.

This article originally appeared in News-Press

Q:  My condominium association states that under Florida Statute 718.112 they can charge a fee when someone is buying a condominium of $100.00 per applicant. They call it a transfer fee, yet in reading the statute one cannot charge husband/wife and parent/dependent child as two separate people. They said that they have every right to charge each person under the law $100.00 and considered it a background check. I understand the need for background checks. However, I question the legality of charging each person $100.00? (B.C., via e-mail)

A:  A condominium association can order a background check for each of the proposed unit occupants, if the declaration of condominium authorizes pre-sale investigation of potential new owners.

Section 718.112(2)(i) of the Florida Condominium Act authorizes a condominium association or its agent to charge a fee of up to $100.00 per applicant in connection with its approval of a sale, mortgage, lease, sublease, or other transfer of a unit, if the condominium documents require the condominium association to approve such transfer and the transfer fee is specified in the condominium documents. As you note, this section of the Florida Condominium Act further provides that married couples, as well as a parent and dependent child, are to be treated as one applicant and pay a single transfer fee. Further, if the transfer being considered by the condominium association is a renewal of a lease or sublease with the same lessee or sublessee, the transfer fee cannot be charged.

Although it does not apply in the context of your association, the Florida Homeowners’ Association Act does not prohibit (or for that matter permit), nor limit transfer fees. Accordingly, the prevailing view is that a homeowners’ associations may charge a reasonable transfer fee if authorized by the governing documents.

The $100.00 transfer fee is intended to reimburse the association for outside expenses incurred (such as the background or credit checks) and otherwise cover the association’s administrative costs. No extra fees may be passed on to an owner or prospective owner (or prospective tenant) by either the association or its agents (such as management companies). Alleged violations of this statute have generated class action litigation in other parts of the State.

I would note that the $100.00 cap in the statute is over 40 years old, and times have certainly changed as has the cost of doing business. I am aware of pending efforts by certain groups to seek a change to the statute authorizing a higher transfer fee, which would seem to make sense.

Q:  Can a condominium renter see the current financials? (R.C., via e-mail)

A:  A renter is only entitled by law in his or her own right to inspect the declaration, articles of incorporation, bylaws, and rules and regulations.

A renter could only inspect the financials and other official records in the same manner as an association member if the renter is authorized by an association member to act as the owner’s authorized representative.

Q: I am a seasonal resident. I sent a letter to the manager of my condominium association requesting that certain records be e-mailed to me. In response, the manager advised that I would have to come into the office to look at the records. Since I am out of town, don’t they have to send the documents to me by either mail or e-mail? (J.B., via e-mail)

A: No. The Florida Condominium Act requires the association requirement to keep records and make those records available for inspection and copying by unit owners. If records are available electronically, the association may, but is not required to, provide the records electronically.

Pursuant to the terms of the statute and interpretations by the applicable state regulatory agency, there is no obligation to send records to owners by mail, e-mail, or otherwise.